In the Matter of Thomas R. Kizer (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 87

Court: State Bar Court of California, Review Department | Filed: June 19, 1990 | Panel: Stovitz, J. (opinion); Pearlman, P.J., and Norian, J., concurring.

Charges Brought Against Respondent

Attorney Thomas R. Kizer (admitted 1982) was charged with serious fiduciary violations arising from a personal-injury settlement handled in 1986–1987 for the Ses family. After receiving settlement drafts totaling $11,250, Kizer withheld $2,200 to pay the treating physician, Dr. Emmanuel Taylan, but failed to safeguard the funds in trust and did not remit $1,180 of the amount owed. Instead, his trust account balance later fell below zero while the doctor remained unpaid. He also misrepresented to the clients that the medical bills had been paid, and separately failed to participate in the State Bar’s investigation. The hearing referee recommended disbarment.

Defenses and Proceedings

The case proceeded by default; Kizer did not answer the Notice to Show Cause, and the charges were deemed admitted after proper service at his State Bar address of record. The hearing included client and translator declarations, bank records for Kizer’s trust account at Mitsui Manufacturers Bank, and a declaration from the physician’s office manager confirming partial payment and the remaining $1,180 unpaid. A State Bar investigator attested that Kizer ignored written inquiries referencing his duty to cooperate under Business & Professions Code §6068(i).

Findings (Independent Review)

On independent review, the Review Department made fuller findings than the referee. It found Kizer: (1) failed to maintain client funds in trust and to pay the doctor on demand, violating former Rules 8-101(A) and 8-101(B)(4); (2) misappropriated entrusted funds (trust balance dropped below the amount owed, without payment), constituting moral turpitude under §6106; (3) misrepresented to clients that medical bills were paid (also §6106); and (4) failed to cooperate with the Bar’s investigation in violation of §6068(i). The Department declined to rely on §6068(a) and §6103 theories in light of Sands and Baker.

Mitigation and Aggravation

Mitigation: None established in the present record.

Aggravation: (1) A substantial prior record of discipline (Supreme Court order, Dec. 1988) involving 12 client-funds matters from 1983–1984 (over $33,000 wrongly withheld to doctors/clients) where Kizer had previously been candid and made restitution—resulting in five-year suspension, stayed, with two years’ actual suspension; (2) multiple acts in the Ses matter; (3) continuing non-restitution of the $1,180 owed to Dr. Taylan; and (4) non-participation in this proceeding, in contrast to his prior cooperation. The court explained that the present misconduct is more serious than the prior record because it includes actual misappropriation and deceit.

Outcome

Given the new misappropriation, dishonesty, and failure to cooperate layered atop his significant prior discipline, the Review Department recommended disbarment to protect the public, the courts, and the profession. If Kizer’s earlier actual suspension were to end before the Supreme Court’s final order in this case, he was also ordered to comply with Rule 955 (now Rule 9.20) within the specified timeframes.

Sanctions Table